IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HONG PHOY, :

: CIVIL ACTION

Plaintiff, :

:

v. :

:

JO ANNE B. BARNHART, : NO. 05-2791

Commissioner of Social Security, :

:

Defendant. :

REPORT AND RECOMMENDATION

CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

Currently pending before the Court are cross-motionsforsummary judgmentregarding plaintiff’s

applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)

pursuant to Titles I and XVI, respectively, of the Social Security Act, 42 U.S.C. 401, et seq. For the

reasons which follow, we recommend that the defendant’s motion for summary judgment be granted and

plaintiff’s motion be denied.

I. PROCEDURAL HISTORY

Plaintiff, Hong Phoy, filed her applications for DIB and SSI on October 14, 2003, alleging

disability since September 1, 1995, due to back pain, abdominal pain, status post stomach surgery. (R.

41-43, 57, 66). The state agency denied plaintiff’s applications on December 9, 2003. (R. 25-28).

Following a request for review, AdministrativeLawJudge (“ALJ”)DianeC.Moskal conducted a hearing

on July 20, 2004, during which plaintiff and a vocational expert testified. (R. 25-38, 129-155). On

September 13, 2004, after leaving the record open for the receipt of treatment records from plaintiff’s

treating physician and for consideration of plaintiff’s request that the case be remanded to the state

agency and/or a mental consultative examination be obtained, ALJ Moskal issued a decision finding

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plaintiff not “disabled” for purposes of obtaining benefits. (R. 16-22). The Appeals Council denied

plaintiff’s request for review on May 11, 2005, making the ALJ’s decision the final decision of the

Commissioner. (R. 8-10). 

On July 8, 2005, plaintiff filed a complaint in this Court seeking judicial review of the

Commissioner’s decision. Challenging the ALJ’s finding, plaintiff now claims that the ALJ (1) violated

her duty to develop the record; (2) rejected medical opinion evidence without adequate explanation; and

(3) did not comply with applicable authority relating to residual functional capacity assessment.

II. MEDICAL HISTORY

A. Vocational Profile

Plaintiff was born on February 2, 1952, making her fifty-two years old at the time of the ALJ’s

decision (a person closely approaching advanced age) and was forty-eight years old (a younger

individual) on December 31, 2000, the date she last met the insured status requirements for DIB. (R. 24,

136). She has a second grade education in Cambodia and speaks, but cannot read or write English. (R.

17, 56, 139). Her past relevant work experience was as a punch press operator and housekeeper. (R.

140, 152). 

B. Medical Evidence

Records Prior to Alleged Onset Date (September 1, 1995):

Records indicate that plaintiff treated with Phuong Ngoc Trinh, M.D. from April 14, 1994

through November 17, 1994 and complained of abdominal and pelvic pain. (R. 83-88). An upper GI

performed on July 7, 1994 revealed no evidence of gross gastric, duodenal or observed small bowel

pathology and an x-ray of plaintiff’s cervical spine performed that same date was normal. (R. 74-75).

On August 2, 1994, an abdominal ultrasound revealed a “cystic structure noted in left adnexal region as

on previous exams” and a CT of the lower abdomen and pelvis was recommended. (R. 76). A report

dated August 17, 1994 indicated that an EEG performed as a result of plaintiff complaining of

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headaches and dizziness was within normal limits. (R. 77). 

On August 18, 1994, Dr. Preston Kuptsow completed a Local 837 Health and Welfare & Pension

Fund Attending Physician’s Statement for Medical Disability Claims form, indicating that plaintiff

reported to the hospital emergency room on May 5, 1994 and was diagnosed with a bilateral tubo ovarian

abcess. (R. 78). He checked a box indicating that plaintiff was totally disabled and unable to perform

her job because of surgery performed on May 11, 1994. Dr. Kuptsow indicated that plaintiff had a

Laparotomy with bilateral salpingo oophorectomy and was continuously disabled beginning May 5,

1994, but leaving the end date blank. (R. 78). He did not complete the sections of the form asking

whether it was a permanent disability or giving an estimate as to when it would end. (R. 79). Rather,

Dr. Kuptsow stated that plaintiff was discharged from the gynecology service on August 26, 1994 “but

still maintains a number of neurological complaints which must be evaluated and could cause continued

disability.” (R. 79). 

Plaintiff began treatment with Thongchai Vorasingha, M.D. in May 1995, at which time she

complained of pain in her abdomen after eating and was given an antibiotic. (R. 107-108). In June 1995,

Dr. Vorasingha listed plaintiff’s diagnosis as GERD (gastro esophegeal reflux disease). (R. 106). 

Records Post Alleged Onset Date (September 1, 1995):

Plaintiff did not return to Dr. Vorasingha again until March 28, 1997, at which time Dr.

Vorasingha listed her diagnosis as H. Plyori and prescribed medication. (R. 106). Plaintiff then returned

on May 14, 1997, complaining of abdominal pain pushing up to her stomach and pain in her chest and

head. (R. 105).

In August 1997, plaintiff returned to Dr. Trinh, for the first time since November 1994, and he

diagnosed a gastric ulcer. (R. 82). Plaintiff next returned to Dr. Visingha for a single visit on March

9, 1998, at which time she was prescribed Ibuprofin for pain, Zantac and Roboxian. (R. 105). 

 Plaintiff reported once again to Dr. Trinh in 1999, after almost two years since she had last seen

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him. She did not return again to Dr. Vorasingha until October 2003, after an absence of more than five

years, for two appointments and completion of a Welfare Employability Assessment Form. (R. 104-105,

110-111). Dr. Vosingha completed the form indicating that plaintiff was temporarily disabled from

October 2003 until January 2004 due to “senility 51 y.o.”, osteoarthritis, and migraines. (R. 112). He

also noted that she needs more work up when assigned to his office. (R. 112). 

On November 17, 2003, State Disability Doctor, Brad Rothkopf, M.D., completed a disability

examination of plaintiff. (R. 92-94). Plaintiff was accompanied by a friend who was able to translate

for her. (R. 92). Dr. Rothkopf noted that plaintiff was having burning pain in her pelvis which continued

after her surgery and comes and goes, but bothers her much of the time. He further indicated that she

has a history of low back pain since her surgery and trouble bending. She has been treated by “Dr.

Thonchi” (presumably Thongchai Vorasingha, M.D.) for back strain and is unable to walk because of

pain in her back, both legs and toes and feet. She complains of periodic dizziness, which Dr. Rothkopf

indicated is very hard to characterize. (R. 92). 

Upon physical examination he found plaintiff to be a pleasant, alert woman in no acute distress.

He noted a grade 1/6 murmer at the aortic area and as to her abdomen indicated that it was benign but

diffuse and mildly tender. She had full range of motion in fingers, wrists, elbows, shoulders and neck

and strength was equal bilaterally and no evidence of muscle atrophy in the legs. (R. 94). As to mental

status, Dr. Rothkopf stated that it was “really hard to assess although I would suspect it was normal.”

(R. 94). His impression was low back pain and pelvic pain, but he stated “It is really unclear to me what

this lady suffers from as communication was clearly less than optimal. Information from her treating

source (particularly the doctor named) including his office notes and hopefully results of studies would

be extremely valuable in determining the nature and extent of this lady’s injuries. Her examination was

clinically quite benign.” (R. 94). 

On November 24, 2003 Sharon Wander, M.D. completed a Functional Capacity Assessment of

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plaintiff . She opined that plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or

carry 25 pounds, stand and/or walk about 6 hours in an 8 hour day, sit for about 6 hours in an 8 hour day

and was unlimited as to pushing and pulling. (R. 96). She further indicated that plaintiff has no postural,

manipulative, visual, communicative or environmental limitations. Dr. Wander explained that plaintiff

maintains activities of daily living, including living alone, shopping, and preparing meals. (R. 100).

Plaintiff returned to Dr. Vorasingha for two visits in December 2003, at which time he noted that

her diagnosis was GERD and prescribed a cream for itchy arms and legs. (R. 103-104). On March 2,

2004 Dr. Vorasingha completed a second Pennsylvania Department of Public Welfare Employability

Assessment indicating that plaintiff was temporarily disabled beginning on that date and opined that her

disability was expected to last until September 2, 2004, due to a primary diagnosis of “senility 51 y.o.”

and a secondary diagnosis of osteoarthritis and palpitation. (R. 110). He once again noted that she

needed more work up when she is assigned to his office. Plaintiff indicated on the form that she believed

she could not work because of “body sickness”, her head always aches like migraines and dizziness,

abdominal pain and she had surgery to remove uterus. (R. 109). Dr. Vorasingha finally saw plaintiff

again on May 17, 2004, at which time she reported lower back pain, upset stomach after eating and

dizziness but her BM was normal. (R. 103). 

C. Administrative Hearing Testimony

On July 20, 2004, a hearing was held before ALJ Diane Moskal. (R. 129-155). Before the

testimony began ALJ Moskal agreed to keep the record open for 30 days after plaintiff’s attorney

indicated that due to confusion regarding plaintiff’s current treating doctor, he had not requested records

from Dr. Vorasingha. (R. 131-132). Plaintiff’s attorney also requested that the matter be remanded to

allow the state agency to develop a claim of a mental impairment which was not originally alleged. (R.

132-134). 

Plaintiff, with the assistance of a Cambodian interpreter, then testified regarding her impairments

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and their impact on her ability to function. (R. 136-152). She was born on February 2, 1952, making

her 52 at the time of the hearing, weighs 120 pounds and did not know her height. (R. 136-137). She

is right handed, does not use any canes or braces and does not have a driver’s licence. (R. 137). Plaintiff

testified that she has been in the United States since 1985, but is not yet a citizen. (R. 137). She has

lived alone in a house, which she owns, for the past four years and receives public assistance. (R. 137-

138). Plaintiff stated that her gas for cooking had recently been turned off and that her children no longer

help her financially. (R. 139). 

With regard to work history, plaintiff testified that she tried to go to school but could not because

she gets dizzy when she walks. (R. 139). She worked doing housekeeping at the Sheraton in King of

Prussia for two years and then worked as a fabric cutter, punching holes in aluminum, in New Jersey for

eight years. (R. 139-140). According to plaintiff she returned to work after having surgery on her

intestine, but after a second surgery was unable to return to work. (R. 140-141). Plaintiff explained that

the second surgery was to remove her uterus because she had lifted something heavy at work. (R. 141).

In response to the ALJ’s comment that the record reflected that her ovaries had been removed and that

many women return to work after these types of surgery, plaintiff testified that after the second surgery

her husband left and she became depressed. (R. 141). When asked who treated her for depression,

plaintiff testified that she saw a Chinese doctor in South Philadelphia who gave her medications. (R.

141-142). However, plaintiff’s counsel indicated that her medications include Ativan, a pill for her

stomach, Meclovan, Ibuprofen and a throat spray. (R. 142). Plaintiff testified that she was able to come

to the hearing because a friend brought her. (R. 142). She stated that she sees Dr. Vorasingha once a

month or sometimes once every two months and has not seen any other doctors in the past six months.

(R. 142-143). 

As to plaintiff’s daily activities, she admitted that she does her own cooking, cleaning and

shopping, but stated that she stands for only a short time and sometimes sits while cooking because her

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legs shake and it looks like she is drunk. (R. 143). When asked if anyone has told her what is wrong

with her legs, plaintiff testified that she has not gone for tests because she does not have anyone to bring

her there and she did not know what type of tests were suggested. (R. 143-144). Plaintiff also testified

that sometimes when she turns her heard everything around her seems out of shape. (R. 144). When

the ALJ suggested that she follow up on tests, plaintiff stated that she is scared of getting another

operation. (R. 144). When asked to describe her depression, plaintiff stated that she is worried about

her general health and she is poor, does not have money for gas for cooking and her husband wants her

to die sooner so he can get the house. (R. 144). She explained that she feels sad and the more she thinks

about it she wants to hang herself. (R. 144). She admitted, however, that she has never told Dr.

Vorasingha about this and explained that whatever she has told him he has only given her medication

which has not really helped. (R. 145). When the ALJ asked how he could prescribe medication for

depression if plaintiff did not tell him, she testified that she is afraid to tell him too much because he will

send her for another exam and she would rather kill herself than have surgery. (R. 145). Plaintiff

indicated that she is not legally divorced, but is separated and her husband has a girlfriend. (R. 145).

Upon questioning by plaintiff’s counsel, she testified that since her last surgery she never feels

happy and sometimes cries even while sleeping. (R. 146). She admitted that her dizziness does not

happen regularly, but just sometimes when she is turning her head. Plaintiff stated that she engages in

“coining”, which was explained as a traditional treatment which involves rubbing a coin on the feet to

remove poisons in the blood. (R. 146). When questioned by her attorney, plaintiff testified that she

sleeps only about two hours and wakes up because she is sad and wants to die. (R. 147). In response

to the ALJ’s inquiry regarding why the family member who completed her Social Security forms

indicated that she had no problems sleeping, plaintiff testified that she was afraid they would send her

to a doctor and she does not want brain surgery. (R. 148). 

Plaintiff testified that the reason she switched doctors was because she had to pay to see Dr. Trihn

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and he refused to complete her forms for public assistance because he assumed she was healthy since she

had not seen him for three years. (R. 148). She testified that she is using a medical assistance card to

see Dr. Vorasingha. (R. 148-149). Upon re-examination by plaintiff’s attorney, she testified that Dr.

Trinh speaks Vietnamese and English and Dr. Vorasingha speaks Thai. (R. 149). She reported that she

sometimes has a Cambodian interpreter to help her communicate with Dr. Vorasingha. (R. 149).

Plaintiff testified that her sleep has been disrupted for the past three or four years and that she has lost

weight, although she did not know how much, since she stopped working due to her difficulty sleeping

and eating. (R. 150). She explained that since her last surgery she has pain and burning in her chest and

eating turns her stomach and sometimes makes her go to the bathroom right away. (R. 151). Plaintiff

indicated that she has episodes when she hears a loud noise, such as someone screaming outside, where

her chest pounds and she feels shaky and dizzy. She explained that it could happen every day but only

when there is some kind of stimulation or noise. (R. 151). 

Following the completion of plaintiff’s testimony, vocational expert (“VE”) Dennis Mohn

testified regarding plaintiff’s work potential. (R. 152-154). First, he classified plaintiff’s past job as a

punch press operator as medium, low level semiskilled work. (R. 152). Thereafter, he testified in

response to the ALJ’s only scenario posed, that plaintiff’s prior work would be consistent with the RFC

assessed by Dr. Sharon Wander. (R. 152-153). He noted that for someone with no English skills, the

job is learned through demonstration. (R. 153). Plaintiff’s counsel did not have any questions for the

VE.

III. THE ALJ’S DECISION

On September 13, 2004, the ALJ issued a decision finding plaintiff not disabled for purposes of

benefits. (R. 16-22). Under step one of the sequential analysis, the ALJ determined that plaintiff had

not engaged in substantial gainful activity since her alleged onset date, resolving step one in her favor.

 (R. 17). She then concluded that plaintiff’s back pain and abdominal pain post oophorectomy more than

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minimally impact on her ability to perform work activity and are therefore “severe” impairments as

defined by the Act, but that there is no objective documentation of a severe mental impairment. (R. 18-

19). Nonetheless, the ALJ declined to find that plaintiff had any impairment which met or equaled the

criteria of Listings 1.04 or when considered in combination satisfied the listing requirements. (R. 19).

Turning to an assessment of plaintiff’s residual functional capacity, the ALJ first considered

plaintiff’s subjective complaints and found that due to its inconsistency with the objective evidence both

from medical sources and her own family member as well as her own prior statements, her testimony

could not be credited. (R. 20). Ultimately, she gave little weight to Dr. Vorasingha’s findings of

temporary disability as she concluded that they were not supported by his own treatment notes or the

remainder of the record. (R. 20). Relying upon the testimony of the VE, the ALJ concluded that plaintiff

could return to her past work as a punch press operator and as such, she deemed plaintiff not entitled to

benefits. (R. 20-21).

IV. STANDARD OF REVIEW

On judicial review of a final decision from the Commissioner of Social Security, a court must

determine whether the Commissioner’s ruling is supported by substantial evidence. 42 U.S.C. § 405(g);

Burnett v. Commissioner of Social Security, 220 F.3d 112, 118 (3d Cir. 2000); see also Plummer v.

Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (a reviewing court is “bound by the ALJ’s findings of fact if they

are supported by substantial evidence in the record.”). "Substantial evidence" does not mean "a mere

scintilla," but rather indicates such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); Jones v.

Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Accordingly, the court’s scope of review is “limited to

determining whether the Commissioner applied the correct legal standards and whether the record, as

a whole, contains substantial evidence to support the Commissioner’s findings of fact.” Gilmore v.

Barnhart, 356 F. Supp.2d 509, 511 (E.D. Pa. 2005) (quoting Schwartz v. Halter, 134 F. Supp.2d 640, 647

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(E.D. Pa. 2001)).

V. DISCUSSION

Plaintiff’s allegations all concern the ALJ’s residual functional capacity assessment and whether

it is supported by substantial evidence of record. “‘Residual functional capacity’ is defined as that

which an individual is still able to do despite the limitations caused by his or her impairment(s).”

Hartranft v. Apfel, 181 F.3d 358, 359 n. 1 (3d Cir. 1999) (citing 20 C.F.R. § 404.1545(a)). In making

a residual functional capacity determination, the ALJ must consider all evidence before him. Burnett v.

Commissioner of Social Security, 220 F.3d 112, 121 (3d Cir. 2000). “Although the ALJ may weigh the

credibility of the evidence, he must give some indication of the evidence which he rejects and his

reason(s) for discounting such evidence.” Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).

Plaintiff specifically argues that (1) the ALJ failed to properly develop the record; (2) that she improperly

rejected medical opinion evidence without adequate explanation; and (3) that she did not comply with

applicable authority regarding RFC assessment. Plaintiff does not seek reversal, but rather seeks remand

for de novo consideration including psychological or psychiatric examinations. We will address these

arguments in turn.

A. ALJ’s Duty to Develop the Record:

In general, Social Security Disability proceedings are “inquisitorial rather than adversarial” in

nature, thus making it “the ALJ’s duty to investigate the facts and develop the arguments both for and

against granting benefits.” Sims v. Apfel, 530 U.S. 103, 103-4, 120 S. Ct. 2080, 2081 (2000). Courts

have recognized that the ALJ’s duty to develop the record is heightened when plaintiff lacks counsel:

“[L]ack of counsel not only heightens the level of care with which the administrative law judge should

organize the creation of the record, but also that with which a reviewing court should scrutinize it.”

Brittingham v. Weinberger, 408 F. Supp. 606, 611 (E.D. Pa. 1976) (citing Gold v. Secretary of Health,

Education, and Welfare, 463 F.3d 38, 43 (2nd Cir. 1972)). In general, however, “if there is insufficient

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medical documentation or if the medical documentation is unclear, it is incumbent upon the Secretary

to secure any additional evidence needed to make a sound determination." Ferguson v. Schweiker, 765

F.2d 31, 36-7 n.4 (3d Cir. 1985). The Third Circuit has repeatedly held that the ALJ has an affirmative

obligation to assist the claimant in developing facts. Plummer, 186 F.3d at 433-34; Taybron v. Harris,

667 F.2d 412, 414-15 (3d Cir.1981). Thus, independent of the fact that plaintiff has the burden of

proving disability, the ALJ has the duty to further develop the record on plaintiff’s behalf by ordering

further medical testing if the available medical documentation is insufficient or unclear. 

In the case at bar, plaintiff was fully represented by counsel. Thus, it is not apparent that the

ALJ’s duty to develop the record was heightened in that respect. Plaintiff does, however, argue that

psychiatric testing was needed to further support her argument of a mental impairment. After examining

the record and the hearing transcript, however, we find the ALJ fulfilled her duty to develop the record,

thereby basing her decision upon substantial evidence. 

Prior to the hearing, plaintiff had already been sent for a consultative examination to further

develop the record due to her family member’s reports that she had not had treatment for years. (R. 17).

Notably, even at this evaluation, which was conducted in connection with the application for benefits,

and where an interpreter was present, plaintiff still failed to even mention any depression or other mental

impairment. It was not until the hearing that plaintiff even alleged a mental impairment, at which time

the ALJ entertained plaintiff’s counsel’s argument regarding a request for remand and elicited testimony

regarding the alleged impairment. 

Plaintiff testified that after her second surgery she became very sick mentally and physically

because her husband left her and has a girlfriend. (R. 141). When asked about treatment, plaintiff

informed the ALJ that she saw a Chinese doctor in South Philadelphia who had prescribed medication,

but after plaintiff’s attorney went through her medications, as the ALJ indicated in her decision, there

were none other than those prescribed by the doctors of record for arthritis, dizziness and her stomach.

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(R. 142, 19). Although plaintiff testified that she has been depressed since her surgery and indicated that

she has wanted to kill herself, she admitted that she has never told her doctors about depression. As the

ALJ concluded, any complaints regarding plaintiff’s mental impairments were not supported by the

record and were entirely inconsistent with even plaintiff’s own prior reports to the Agency. While

plaintiff testified that she is unable to sleep more than two hours at a time and has experienced weight

loss as a result of her inability to sleep and her physical problems, as the ALJ noted, the forms completed

by a family member and submitted as part of her application indicated that she has no problems sleeping

and no weight loss. An ALJ’s determination as to credibility is entitled to “strong deference.” Smith

v. Commissioner of Social Security, 80 Fed. Appx. 268, 270 (3d Cir 2003) (unpublished), citing

N.R.L.B. v. Permanent Label Corp., 657 F.2d 512, 518 (3d Cir. 1981). Here, the ALJ’s reasoning for

discrediting plaintiff’s testimony was clear and certainly reasonable. She considered the records of

plaintiff’s treating physicians, the consultative examination performed by Dr. Rothkopf and the

assessment of Dr. Wander, as well as plaintiff’s own reports to examining and treating physicians, and

the forms completed by plaintiff and her family members on her behalf. As noted by Dr. Wander and

even according to plaintiff’s own testimony, she maintains activities of daily living, including living

alone, shopping, and preparing meals. (R. 100, 139). The ALJ also considered the fact that plaintiff

returned to Dr. Vorasingha after significant lapses in treatment for the completion of forms for medical

assistance and her own testimony that she switched doctors because Dr. Trihn refused to complete

disability forms. (R. 18, 20). 

Other than plaintiff’s own allegations which were raised for the first time at the hearing, the only

thing in the record to even suggest any mental impairment is her doctor’s listed diagnosis on two forms

completed for welfare indicating she was temporarily disabled as a result of “senility, 51 y.o.”. As

detailed below, the ALJ noted that there is nothing to support this finding in his own treatment notes or

any where else in the record. The ALJ considered plaintiff’s request for remand to obtain a consultative

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mental evaluation both at the hearing and addressed it in her opinion. She noted that the most prominent

diagnosis in Dr. Vorasingha’s records “in very intermittent, routine visits, relates to GERD” and “[h]e

does not diagnose ANY depression, anxiety, or cognitive issues.” Furthermore, she noted that “no

treating, or examining medical source has referred claimant to even routine outpatient, mental health

treatment.” (R. 19). Plaintiff had already been sent for a consultative exam and the record remained

open to allow for submission of plaintiff’s treating doctor’s records, which were submitted and fully

considered by the ALJ along with the remainder of the record. There is nothing in any of the reports to

support a finding of a severe mental impairment or any functional limitations resulting from a mental

impairment other than plaintiff’s testimony, which was found not to be credible. Thus, there was no

indication that the record was insufficient or unclear. 

After considering the record as a whole, including plaintiff’s testimony, the ALJ found no

objective evidence of a severe mental impairment and denied the request for remand. Specifically, she

indicated that “the request by claimant’s attorney for either remand to SSA due to alleged mental

impairment(s) or mental consultative examination is baseless, and in the nature of an after the fact

“fishing expedition” given the benign treatment and examination records in evidence.” Based on the

record in this case, we agree that based on the information in the record, there was enough evidence to

substantiate the ALJ’s determination that no further evaluation was necessary. We find that the ALJ

fulfilled her obligation to develop the record and was not required to remand for a consultative mental

evaluation based on plaintiff’s new allegations, which contradict even her own prior reports. 

B. Whether the ALJ Improperly Rejected Medical Evidence:

Under applicable regulations and controlling case law, “opinions of a claimant’s treating

physician are entitled to substantial and at times even controlling weight.” Fargnoli v. Massanari, 247

F.3d at 43 (citing 20 C.F.R. § 404.1527 (d)(2)). Such deference is accorded to treating physicians,

especially “when their opinions reflect expert judgment based on a continuing observation of the

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patient’s condition over a prolonged period of time.” Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir.

1987) (quoting Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984); 20 C.F.R. § 404.1527 (d).

Moreover, where the treating physician is a specialist his opinion is entitled to even greater deference.

See Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993); 20 C.F.R. § 404.1527 (d)(5). A treating

doctor’s opinion on the issue of the nature and severity of a claimant’s impairment will be given

controlling weight if the opinion is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.”

20 C.F.R. § 404.1527 (d).

An ALJ may reject a treating physician’s opinion outright only on the basis of contradictory

medical evidence, but may afford a treating physician’s opinion more or less weight depending upon the

extent to which supporting explanations are provided. Plummer, 186 F.3d at 429. In choosing to reject

the treating physician’s assessment, an ALJ may not make “speculative inferences from medical reports”

and may not reject a treating physician’s opinion due to his or her own credibility judgments, speculation

or lay opinion. Morales v. Apfel, 225 F.3d at 317-318 (quoting Plummer, 186 F.3d at 429). Where an

ALJ elects to disregard a treating physician’s opinion, he must explicate on the record his reasons for

doing so. Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986). 

Faced with conflicting reports between a treating and a consulting physician, an ALJ should defer

to the findings of the treating physician rather than to a physician who has examined the claimant as a

consultant. Mason, 994 F.2d at 1067. This principle does not dictate that the opinion of the treating

physician as to whether the claimant is disabled be dispositive of the issue. Adorno v. Shalala, 40 F.3d

43, 48 (3d Cir. 1994). Rather, the ALJ must weigh the relative worth of a treating physician’s report

against the examining physician’s report, keeping in mind that the opinion of the treating physician is

usually entitled to deference. Id. “The opinions of non-examining treating physicians may override a

treating source’s opinions provided that the former are supported by evidence in the record.” Alexander

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v. Shalala, 927 F. Supp. 785, 795 (D.N.J. 1995), aff’d, 85 F.3d 611 (3d Cir. 1996) (citing Schisler v.

Sullivan, 3 F.3d 563, 568 (2d Cir. 1993)).

In the case at bar, plaintiff argues that the ALJ improperly rejected Dr. Vorasingha’s conclusion

on two forms completed for the Pennsylvania Department of Welfare that plaintiff was temporarily

disabled with a primary diagnosis of “senility 51 y.o.”. As plaintiff recognizes in her brief, pursuant to

20 C.F.R. § 404.1527(d) and SSR 96-2p, conclusions of a treating physician as to the ultimate issue of

disability are not controlling because they are on an issue reserved for the Commissioner. In this case,

even Dr. Vorasingha did not render an opinion that plaintiff was disabled within the meaning of the Act.

Rather, on the forms at issue, he opined that she was temporarily disabled. Plaintiff argues that although

this conclusion is not entitled to controlling weight, Dr. Vorasingha’s diagnosis of senility listed on the

forms may have been or at least should not have been rejected. However, as noted by the Commissioner,

the ALJ did not reject Dr. Vorasingha’s opinion, but rather gave it “little weight” as it was not supported

by his notes or the record. 

The ALJfully considered Dr. Vorasingha’s treatment records as well as these two checklist forms

and in accordance with the regulations considered factors such as the length of treatment, nature of the

treating relationship, frequency of examination, consistency with the record and supportability to

determine the weight to be given to his opinions. See 20 C.F.R. §§ 416.927(d)(1)-(6). However, as the

ALJ noted in her decision, senility was not even mentioned anywhere in the record other than on this

form. There is absolutely nothing even within Dr. Vorasingha’s own treatment notes to support this

diagnosis. Furthermore, Dr. Vorasingha offered no written explanation on this one page form, listed no

specific impairments, and his records do not contain any mention of senility or even related complaints.

In fact, the only thing written on the two forms other than the diagnosis is that plaintiff needs more work

up when assigned to his office. (R. 110, 112). More than five years had passed since Dr. Vorasingha

had seen plaintiff when he completed this form in October 2003. The ALJ specifically noted the various

Case 2:05-cv-02791-PD Document 15 Filed 12/22/05 Page 15 of 17
16

voids in his treatment, even during the period of alleged onset, as follows:

“Dr. Vorasingha’s trreatment records have a void from June 6, 1995, when claimant was

diagnosed with gastric esophageal reflux disorder (GERD) until March 28, 1997 – albeit

that claimant asserts disability starting September 1, 1995. Claimant was seen for two

visits in 1997, complaining of abdominal pain; then she did not see Dr. Vorasingha for

almost a year between May 14, 1997 and March 9, 1998. After that visit, there are no

treatment notes for five and a half years, until October 28, 2003, when claimant appeared

with her form to certify her for medical assistance, and was authorized only a three month

period of ‘disability’ by Dr. Vorasingha. Treatment dated December 23, 2003 repeats the

diagnosis of GERD anmd astated that claimant should have more testing related to

reportedbowelsymptoms ofsometimes diarrhea/sometimesconstipation. Next examwas

on March 2, 2004, related to claimant’s needs to have another welfare medical assistance

form complerted. Final visit by Dr. Vorasingha is dated May 17, 2004...” (R. 18).

Given the lapse in time between examinations prior to completing the forms, his own statement that more

work up was necessary, and the lack of any supporting notes in his records, it appears that this single

word diagnosis was based upon nothing more than plaintiff’s subjective statements. 

Plaintiff argues that even if Dr. Vorasingha’s opinion was not entitled to controlling weight, the

ALJ was required to discuss her treatment of the opinion. Upon review of the decision, it is clear that

the ALJ in this case clearly explained why she did not impose any limitations based upon this lone

reference to a diagnosis of senility on these forms. There is nothing in the record, including the form

completed by Dr. Vorasingha which specifies any functional limitations from senility or that indicates

that plaintiff has any severe mental impairment. We therefore do not find that the ALJ erred when

considering the medical evidence of record, including the notes and opinions of Dr. Vorasingha.

C. Applicable Authority Relating to RFC:

Finally, plaintiff argues that the ALJ failed to comply with Social Security Ruling 96-8p when

assessing plaintiff’s RFC. Specifically, she argues that the RFC assessment is flawed because the ALJ

failed to explain why no non-exertional limitations were included, noting that there is evidence of nonexertional impairments other than the alleged mental impairment including dizziness and headaches.

After reviewing the record and the ALJ’s decision, we also find no error in this regard.

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1Notably, on the other form Dr. Vorasingha listed a secondary diagnosis of osteoarthritis and palpitation,

which diagnoses are also not documented in the records. (R. 110). 

17

As to plaintiff’s alleged headaches, on one of the two forms on which Dr. Vorasingha indicated

a primary diagnosis of senility he included a secondary diagnosis of migraines1

. However, once again,

no limitations have been imposed by any doctor as a result of headaches or dizziness. During the

consultative examination, plaintiff did not even report headaches. Although the record includes

plaintiff’s reports of periodic dizziness, by plaintiff’s own admission, her dizziness is not a limitation

which regularly causes her any problems. During the hearing plaintiff specifically testified that the

dizziness was not something that occurred regularly, but only “sometimes” when she turns her head she

gets dizzy. (R. 146). While the record does include references to the fact that plaintiff has at least

reported headaches and dizziness and plaintiff has been prescribed medications, the record does not

support a finding of any resulting limitations. We therefore find that the ALJ was completely justified

in failing to include these or any other any non-exertional limitations in plaintiff’s RFC. 

Upon review of the record in its entirety and the ALJ’s opinion, we find the opinion to be

supported by substantial evidence and find no reason for remand as requested by plaintiff.

Therefore, I make the following:

RECOMMENDATION

AND NOW, this day of December, 2005, IT IS RESPECTFULLY RECOMMENDED that

Defendant’s Motion for Summary Judgment be GRANTED and Plaintiff’s Motion be DENIED.

 

CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-02791-PD Document 15 Filed 12/22/05 Page 17 of 17